PARKER v. UNITED STATES OF AMERICA et al
Filing
27
OPINION. Signed by Judge Noel L. Hillman on 6/27/2019. (rss, ) (Main Document 27 replaced with correct document on 6/27/2019) (rss, ).
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
:
:
Plaintiff,
:
:
v.
:
:
UNITED STATES OF AMERICA,
:
FEDERAL BUREAU OF PRISONS,
:
WARDEN JORDAN HOLLINGSWORTH, :
CORRECTION OFFICER RODGERS,
:
LIEUTENANT ANDERSON, OFFICER :
VIGERALLO, et al.,
:
:
Defendants.
:
______________________________:
BENJAMIN PARKER,
Civ. No. 18-8674(NLH)(JS)
OPINION
APPEARANCES:
Patrick J. Whalen, Esq.
Attorney at Law, LLC
109 S. Warren Street
Trenton, NJ 08608
and
Philip J. Cohen, Esq.
Kamensky Cohen Riechelson
194 South Broad Street
Trenton, NJ 08608
Counsel for Plaintiff
Kristin Lynn Vassallo, Esq.
Office of the U.S. Attorney
970 Broad Street
Newark, NJ 07102
Counsel for Defendants
HILLMAN, District Judge
Plaintiff Benjamin Parker, through counsel, filed a
Complaint pursuant to the Federal Tort Claims Act, 28 U.S.C. §§
1
2671-2680, et seq., against Defendants the United States of
America, the Federal Bureau of Prisons (“BOP”), the former
warden of the Federal Correctional Institution at Fort Dix in
Fort Dix, New Jersey, Jordan Hollingsworth, Officer LaTasha
Rogers, Lieutenant Joseph Anderson, Officer Brian Virgillo, and
John or Jane Does Nos. 1-20 and XYZ Corporations Nos. 1-10, for
injuries he sustained as a result of an assault by another
inmate or inmates while incarcerated at FCI Fort Dix.
ECF No.
1.
Presently before the Court is Defendants’ Motion to Dismiss
for lack of jurisdiction pursuant to Federal Rule of Civil
Procedure 12(b)(1), which is ripe for adjudication.
(motion), 19 (opposition brief), 23 (reply).
ECF Nos. 12
For the reasons
that follow, the Court will grant the Motion in part.
I.
BACKGROUND
A.
Allegations Contained in the Complaint
Plaintiff Benjamin Parker brings this civil action under
the Federal Tort Claims Act (“FTCA”), alleging that he was
assaulted by an unknown inmate or inmates while he was
incarcerated at the Federal Correctional Institution in Fort
Dix, New Jersey, and that this attack occurred as a result of
the negligence on the part of the BOP and its employees.
Plaintiff generally alleges that the defendants were negligent
in creating the conditions that led to his assault because (1)
2
certain actions by defendants may have resulted in the
perception that Plaintiff was cooperating with prison officials
in an investigation akin to being a “snitch,” (2) they created
dangerous conditions by leaving loose cinder blocks and other
debris in the second floor bathroom of Plaintiff’s housing unit,
and (3) staffing was insufficient to prevent the attack on
Plaintiff.
See ECF No. 1.
Plaintiff names as Defendants Jordan
Hollingsworth (the former warden of FCI Fort Dix), Officer
LaTasha Rogers, Lieutenant Joseph Anderson, Officer Brian
Virgillo, the BOP, and the United States of America.
See id. at
1, 11.
At the time of the incident, Plaintiff was incarcerated at
FCI Fort Dix and housed, in the East Compound in Unit 5741 (the
“Unit”), which housed approximately 300 inmates.
Id., ¶¶ 18-19.
Generally, Defendants assigned only one corrections officer to
be on duty and that officer was responsible for monitoring and
supervising Unit 5741.
The corrections officer’s office was
located on the first floor of the Unit.
Id., ¶ 20.
Plaintiff was housed on the second floor of the Unit, in a
12-person room with a door that did not lock.
Id., ¶ 21.
There
was a large bathroom on that second floor (the “Bathroom”) that
was left in a constant state of disrepair.
Id., ¶ 22.
On a
near weekly basis, Defendants’ or their employees routinely
removed cinder blocks from the Bathroom walls and shower stalls
3
in search of contraband.
Id., ¶ 23.
In the process, they would
leave behind an accessible pile of cinder blocks and other
construction debris, which were left unattended and accessible
to all inmates for days at a time.
Id., ¶¶ 24-25.
Plaintiff
alleges that these cinder blocks and debris created an obvious,
known, and plainly visible risk and danger to the inmates housed
at in the Unit.
Id., ¶ 26.
By creating this debris pile,
Defendants provided some of the violent and dangerous inmates at
the Fort Dix with weapons to use against other inmates against
whom they had disagreements or confrontations, such as
Plaintiff.
Id., ¶ 27.
On September 6, 2015, at approximately 10:00 a.m.,
Plaintiff’s name was called over the public address system,
instructing him to report to Defendant Special Investigative
Services (“SIS”) Lieutenant Anderson’s office.
Id., ¶ 31.
Defendant Anderson brought Plaintiff into the SIS Office to be
interviewed regarding an investigation into an alleged extensive
gambling ring involving several inmates at FCI Fort Dix.
32.
Id., ¶
Plaintiff explained that he was not involved in that
gambling operation.
Id., ¶ 33.
Plaintiff knew next to nothing
about it and had no information to provide to the investigation.
Id., ¶ 36.
Another inmate, who had been threatened with violence by
the inmates who were operating the illegal gambling ring and had
4
a significant gambling debt, had reported the matter to the
Defendants or their employees.
Id., ¶ 37.
During that inmate’s
report, Plaintiff alleges that he falsely identified Plaintiff
as being the “enforcer” for the gambling ring.
Id., ¶ 38.
According to Plaintiff, this false tip or fabrication was the
reason Defendants wanted to interview Plaintiff.
Id., ¶ 39.
Plaintiff alleges that Defendants knew or should have known
that the inmates running that illegal gambling ring were
dangerous and had already threatened physical harm to other
inmates, including the inmate making the false report.
41.
Id., ¶
Plaintiff describes Defendants’ actions as putting a
“target” on his back and inviting an unjustified and unwarranted
retaliatory attack on Plaintiff.
Ten days later, on Wednesday, September 16, 2015, Defendant
SIS Agent Officer Virgillo escorted Plaintiff from Unit 5741 to
the SIS Office.
Id., ¶ 45.
Plaintiff was questioned about the
gambling operation again and Plaintiff explained that he had no
involvement.
Id., ¶ 46.
Two days later, on September 18, 2015, Plaintiff was
attacked by one or more inmates.
Id., ¶ 48.
Plaintiff was
struck multiple times in the head with a blunt object, which
Plaintiff alleges was a cinder block or some other piece of
construction debris that Defendants’ staff had left in the
Bathroom.
Id., ¶ 49.
According to the Complaint, the assault
5
occurred between 6:00 a.m. and 6:15 a.m. when Officer LaTasha
Rogers was on duty in the Unit.
Id., ¶¶ 50, 53-54.
Plaintiff
sustained significant, permanent injuries including brain
damage, a posttraumatic epileptic episode, severely broken
facial bones, permanent loss of vision, smell, and taste, and
permanent bodily pain and discomfort.
Id., ¶ 52.
Plaintiff alleges that he was housed in FCI Fort Dix’s
Special Housing Unit when he returned from the hospital and has
not been able to obtain records relating to the investigation
into the gambling ring or the attack against him, impairing his
ability to “get access to the entire truth of the events” that
are alleged in the Complaint.
Id., ¶¶ 56, 58-60.
In the
Complaint, Plaintiff only asserts an FTCA claim against the
Defendants (Count 1).
B.
Defendants’ Supplemental Facts Regarding Jurisdiction
FCI Fort Dix is a federal prison with the primary mission
of housing low security sentenced federal inmates.
12-5.
See ECF No.
The facility, a former military barracks not constructed
as a typical BOP prison, consists of two separate compounds, the
East Compound and the West Compound.
Id.
Each compound
contains numerous buildings, including six or seven dormitorystyle buildings where inmates are quartered, buildings for
inmate recreation and education, food-service buildings, Federal
6
Prison Industries buildings, and administrative buildings,
including a Lieutenant’s complex.
Id.
The buildings used as inmate housing units at FCI Fort Dix
are three stories high and contain multi-purpose rooms,
television rooms, exercise areas, staff offices, and inmate
dormitory rooms.
Id.
The dormitory rooms are typically twelve-
man rooms with some two-man rooms as well.
Id.
The dormitory
rooms do not have locks on the doors, and each floor has open
doors allowing free movement between the floors.
Id.
The housing units also have large bathrooms on each floor,
staff offices, and television rooms.
walls are made of cinderblock.
Id.
See ECF No. 12-4.
The
As a general rule, inmates
are permitted to move freely about the housing unit; however,
they are to remain in their rooms at nighttime usually after
11:00 p.m. and during inmate counts.
See ECF No. 12-5.
There
are approximately 350 inmates assigned to each housing unit.
Id.
Each housing unit is staffed with a “Unit Team,” comprised
of a unit manager, a case manager, and a correctional counselor.
See id.
These positions are typically day-watch assignments
(from 7:30 a.m. to 4:00 p.m.).
See id.
In addition, one
correctional officer is assigned to each housing unit during all
shifts.
See id.
During off-shifts, meaning not during the day
7
shift, the unit officer is solely responsible for monitoring all
three floors and all 350 inmates of the housing unit.
See id.
During a routine work week, inmates typically leave their
assigned housing units for a work assignment.
See id.
If an
inmate has no work assignment or has the day off, he can spend
the day in recreation, the library, education classes, hobby
craft, etc.
See id.
An inmate can move to the different areas
of the compound during designated “moves,” which give an inmate
a specific timeframe to walk from one location to the next.
id.
See
During a move, the unit officer opens the housing unit door
and typically stands inside or outside of the doorway in order
to monitor inmate movement.
See id.
After the move, an inmate
must remain in his chosen location until the next ten-minute
move is called.
See id.
There is no federal statute, regulation, or policy that
requires the BOP to take a particular course of action to ensure
an inmate’s safety from attacks by another inmate.
See id.
Furthermore, there has never been any BOP regulation or policy
in effect that dictated the number of correctional officers a
warden of a BOP facility was required to assign to monitor or
supervise a particular security post within the institution.
See id.
There likewise is no policy or regulation that mandates the
placement of the assigned correctional officers within a BOP
8
facility or housing unit.
See id.
Rather, the authority to
determine the number and placement of correctional officers
within a BOP facility is a matter that is left to the discretion
of each BOP warden.
See id.
Among the factors that each warden
considers are the safety of inmates, the safety of BOP staff,
how to effectively deploy limited staff resources, and prison
security generally.
See id.
The SIS Department at Fort Dix consists of SIS lieutenants
and technicians, who conduct investigations of inmates
committing violations of BOP rules or criminal law, gather
intelligence, maintain a urinalysis program, and serve as the
law enforcement liaison with local law enforcement departments.
See ECF No. 12-4.
Inmates at FCI Fort Dix frequently use common areas such as
bathrooms and television rooms to conceal contraband in such a
way as to make identifying the possessor nearly impossible.
id.
See
Inmates frequently conceal homemade intoxicants behind
walls in the restrooms by removing cinderblocks, placing the
homemade intoxicants inside of the walls, and replacing the
cinderblocks.
See id.
They also remove urinals in a similar
fashion in order to hide contraband.
See id.
The BOP requires searches of inmates, their housing units,
and work areas in order to locate contraband and deter its
introduction, in accordance with 28 C.F.R. § 552.14 and Program
9
Statement 5521.06.
See id.
The only guidance provided as to
housing unit searches is to “[l]eave the housing or work area as
nearly as practicable in its original order.” 28 C.F.R. §
552.14(b).
The Correctional Services Manual instructs staff
members to look for contraband in areas such as hidden
compartments and hollow legs.
See ECF No. 12-4.
Housing Unit
staff members must search these areas in order to find
contraband and to deter future behavior.
See id.
Many times, if staff members receive a tip or if there is
evidence of disruption of walls or other infrastructure, the
searches involve having to further disturb that area in order to
retrieve the contraband.
See id.
While staff members attempt
to immediately restore the area back to its prior condition,
there are times when additional maintenance is necessary.
id.
See
There is no policy, regulation or statute that specifically
instructs how staff members search for and retrieve contraband.
See id.
Nor is there any policy, regulation, or statute that
directs staff members how to keep cinderblock or other building
materials away from inmates.
See id.
With respect to SIS investigations, the SIS Manual dictates
timelines for investigations and what documents are required to
be part of the case file.
See id.
It also dictates that all
victims and witnesses must be interviewed.
10
See id.
There is no
guidance regarding how or where interviews are to be conducted.
See id.
At Fort Dix, if an inmate in the general population needs
to be interviewed as a suspect, victim, or witness, a lieutenant
typically contacts the housing unit officer to instruct the
inmate to report to the Lieutenant’s Office.
See id.
If the
inmate cannot be immediately located, he is called over the
institution intercom and instructed to report to the
Lieutenant’s Office.
See id.
Defendants state that this is the
safest way to conduct an interview as it draws less attention to
the inmate than if the SIS Agent or Lieutenant reported to the
housing unit and retrieved the inmate.
See id.
Inmates are
called to the Lieutenant’s Office for many other reasons,
including random urinalysis, serving of incident reports, and
general counseling of inmates.
See id.
An intercom
announcement does not reveal that an inmate is a participant in
an SIS investigation.
See id.
There are no rules, regulations, or statutes that require
the investigation or interviewing of inmates to be conducted in
any particular type of manner.
See id.
FCI Fort Dix has chosen
a procedure which works best to suit inmate safety given the
layout of the facility.
See id.
The SIS building is located
outside of the secure perimeter at FCI Fort Dix.
See id.
Accordingly, SIS staff use the Lieutenant’s complex (which is
11
inside of the secure perimeter) when contact with an inmate is
necessary.
II.
See id.
STANDARD OF REVIEW
A motion to dismiss under Federal Rule of Civil Procedure
12(b)(1) challenges the power of a federal court to hear a claim
or a case.
Cir. 2006).
See Petruska v. Gannon Univ., 462 F.3d 294, 302 (3d
When presented with a Rule 12(b)(1) motion, the
plaintiff “will have the burden of proof that jurisdiction does
in fact exist.” Id. at 302 n.3.
There are two types of Rule 12(b)(1) motions.
A “facial”
attack assumes that the allegations of the complaint are true
but contends that the pleadings fail to present an action within
the court’s jurisdiction.
See Mortensen v. First Fed. Sav. &
Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977).
A “factual”
attack, however, asserts that, while the pleadings themselves
may facially establish jurisdiction, one or more of the factual
allegations is untrue, causing the case to fall outside the
court’s jurisdiction.
Id. at 891.
In such a case, “no
presumptive truthfulness attaches to plaintiff’s allegations”
and the court must evaluate the merits of the disputed
allegations because “the trial court’s . . . very power to hear
the case” is at issue.
Id.
12
With a factual attack, such as that presented here by
Defendants, 1 the Court is free to consider evidence outside the
pleadings and weigh that evidence.
See Petruska, 462 F.3d at
302 n.3; Gould Elecs., Inc. v. United States, 220 F.3d 169, 176
(3d Cir. 2000).
“[T]he existence of disputed material facts
will not preclude the trial court from evaluating for itself the
merits of jurisdictional claims.”
Petruska, 462 F.3d at 302 n.3
(quoting Mortenson, 549 F.2d at 891).
III. DISCUSSION
A.
Dismissal of Individual and BOP Defendants
The Individual Defendants and the BOP have moved to be
dismissed as defendants because the actions at issue in the
Complaint were taken in the course of their federal employment,
and under the FTCA, the United States it the only proper
defendant in such a circumstance.
Plaintiff appears not to
oppose this defense in its opposition to the Motion.
See ECF
No. 19.
1
Defendants note in their opening brief that their motion to
dismiss is a factual attack on the alleged jurisdiction. See
ECF No. 12-8 at 6 n.3. Plaintiff’s argument that documents
outside the pleadings are improper is thus inapposite to the
procedural posture presented by this Motion. Further,
Plaintiff’s request for discovery regarding certain BOP policies
and manuals appears to have been satisfied by Plaintiff’s
production of those materials, see ECF No. 24. Plaintiff has
not renewed his request for discovery since the provision of
these documents.
13
“[T]he United States, as sovereign, is immune from suit
save as it consents to be sued . . , and the terms of its
consent to be sued in any court define that court’s jurisdiction
to entertain the suit.”
United States v. Mitchell, 445 U.S.
535, 538 (1980) (quoting United States v. Sherwood, 312 U.S.
584, 586 (1941)).
The Federal Tort Claims Act, which provides
the exclusive remedy for tort claims against the United States,
is a limited waiver of sovereign immunity.
See Santos v. United
States, 559 F.3d 189, 193 (3d Cir. 2009).
Pursuant to that statute, the United States shall be
liable, to the same extent as a private party, “for injury or
loss of property, or personal injury or death caused by the
negligent or wrongful act or omission of any employee of the
Government while acting within the scope of his office or
employment.”
28 U.S.C. §§ 1346(b), 2679(b)(1).
The only
appropriate defendant in an FTCA action, however, is the United
States.
See 28 U.S.C. § 2679(a); Priovolos v. FBI, 632 F. App’x
58, 60 (3d Cir. 2015) (citing CNA v. United States, 535 F.3d
132, 138 n.2 (3d Cir. 2008)); Feaster v. Fed. Bureau of Prisons,
366 F. App’x 322, 323 (3d Cir. 2010).
In this case, Plaintiff brings only a FTCA claim but also
includes as defendants the BOP and four federal employees who
were acting within the scope of their federal employment at the
time of the events alleged in the Complaint.
14
See ECF Nos. 1;
12-2 at 1 (Certification of Scope of Employment).
Federal
agencies, such as the BOP, may not be sued under the FTCA.
Priovolos, 632 F. App’x at 60.
See
In addition, because Plaintiff’s
tort claims arise out of alleged actions taken by the individual
defendants in the scope of their federal employment, the
individual defendants are not proper defendants and must be
dismissed.
See, e.g., Murchison v. Warden Lewisburg USP, 566 F.
App’x 147, 150 (3d Cir. 2014); Bey v. Bruey, No. 09-cv-1092,
2009 WL 961411, at *8 (D.N.J. Apr. 8, 2009).
Accordingly, the
claims against the BOP and the named individual defendants, as
well as the unidentified individual and corporate defendants
will be dismissed for lack of jurisdiction.
B.
Failure to Exhaust Supervisory Liability Claim
Defendants move to dismiss the supervisory liability claim
in the Complaint on the basis of lack of exhaustion.
Under the
FTCA, 28 U.S.C. § 2675(a),
An action shall not be instituted upon a claim against
the United States for money damages for injury or loss
of property or personal injury or death caused by the
negligent or wrongful act or omission of any employee
of the Government while acting within the scope of his
office or employment, unless the claimant shall have
first presented the claim to the appropriate Federal
agency and his claim shall have been finally denied by
the agency in writing and sent by certified or
registered mail. The failure of an agency to make
final disposition of a claim within six months after
it is filed shall, at the option of the claimant any
time thereafter, be deemed a final denial of the claim
for purposes of this section. The provisions of this
subsection shall not apply to such claims as may be
15
asserted under the Federal Rules of Civil Procedure by
third party complaint, cross-claim, or counterclaim.
Id.
There is no dispute that Plaintiff did file a proper claim
and did file the Complaint within the appropriate time period
after receiving a response to his claim.
The dispute concerns
the scope of the claim.
A ”claim” as that term is used in § 2675 includes a written
statement describing the injury in sufficient detail to allow
the agency to begin an investigation into the possibility of
potentially tortious conduct and a request for a sum certain in
damages.
See Tucker v. U.S. Postal Serv., 676 F.2d 954, 959 (3d
Cir. 1982); Estate of Trentadue ex el Aguilar v. United States,
397 F.3d 840, 852 (10th Cir. 2005).
In addition, “a claim shall
be deemed to have been presented when a Federal agency receives
from a claimant . . . an executed Standard Ford 95 or other
written notification of an incident, accompanied by a claim for
money damages in a sum certain for injury to or loss of
property, personal injury, or death alleged to have occurred by
reason of the incident.”
28 C.F.R. § 14.2(a).
“Although an
administrative claim need not propound every possible theory of
liability in order to satisfy section 2675(a), . . . a plaintiff
cannot present one claim to the agency and then maintain suit on
the basis of a different set of facts.”
16
Roma v. United States,
344 U.S. 352, 362 (quoting Deloria v. Veterans Admin., 927 F.2d
1009, 1011-12 (7th Cir. 1991).
Plaintiff’s “basis of the claim” contained in the Standard
Form 95 provides,
This claim concerns life threatening injuries that
caused permanent damage suffered by claimant Benjamin
Francis Parker . . . while incarcerated at FCI Fort
Dix (“Ft. Dix.”). It is based on federal employees’
negligence when they allowed him to be viciously
assaulted on September 19, 2015 . . . . Bureau of
Prisons (“BOP”) employees’ negligent conduct
contributed to the September 18, 2015 assault . . . .
See ECF No. 12-7.
The narrative describes the debris left in
the bathroom left by staff, the circumstances surrounding the
SIS investigation and the summoning of Plaintiff, the staffing
levels for the housing unit, and many other details.
See id.
The Court finds this description in the “basis of the claim”
sufficient to encompass the FTCA claim contained in the
Complaint, which is a claim alleging that BOP employees’ actions
negligently caused or contributed to the assault on Plaintiff.
Defendants’ Motion to Dismiss as it relates to exhaustion is
denied.
C.
Discretionary Function of Alleged Negligent Acts
Defendant the United States alleges that Plaintiff may not
assert any of his claims against it because each category of
alleged conduct is a discretionary government function that may
not serve as a basis for a claim under the FTCA.
17
Plaintiff
responds that the actions negligently caused or contributed to
the assault on him
- the accessibility of the allegedly
weaponized cinder blocks and effectively labelling Plaintiff as
a snitch - both created a foreseeable dangerous condition and
are beyond the scope of the discretionary function exception.
Given the limited record before it, the Court declines at this
time to decide the application of the exception.
Under the discretionary function exception, the United
States may not be held liable for alleged negligence “based upon
the exercise or performance or the failure to exercise or
perform a discretionary function or duty . . . whether or not
the discretion involved be abused.”
28 U.S.C. § 2680(a).
This
exception “marks the boundary between Congress’ willingness to
impose tort liability upon the United States and its desire to
protect certain governmental activities from exposure to suit by
private individuals.”
United States v. S.A. Empresa de Viacao
Aereo Rio Grandense, 467 U.S. 797, 808 (1984).
Through this
exception, Congress sought to “prevent judicial second-guessing
of legislative and administrative decisions grounded in social,
economic, and political policy through the medium of an action
in tort.”
United States v. Gaubert, 499 U.S. 315, 323 (1991).
To determine whether the discretionary function applies, a
court first “must identify the conduct at issue.”
S.R.P. ex
rel. Abunabba v. United States, 676 F.3d 329, 332 (3d Cir.
18
2012).
The court must then follow a two-step inquiry.
First,
the court must determine “whether the action is a matter of
choice for the acting employee.
This inquiry is mandated by the
language of the exception; conduct cannot be discretionary
unless it involves an element of judgment or choice.”
Baer v.
United States, 722 F.3d 168, 172 (3d Cir. 2013) (quoting
Berkovitz v. United States, 486 U.S. 531, 536 (1988)).
An act
involves judgment or choice if there is no “federal statute,
regulation, or policy specifically prescrib[ing] a course of
action for an employee to follow.”
Cestonaro v. United States,
211 F.3d 749, 753 (3d Cir. 2000).
Second, if “a specific course of action is not prescribed,
[the court] proceed[s] to the second step, which requires [the
court] to determine whether the challenged action or inaction is
of the kind that the discretionary function exception was
designed to shield.” S.R.P., 676 F.3d at 333.
The actions at
issue must be “susceptible to policy analysis” or “based on the
purposes that the regulatory regime seeks to accomplish,”
Gaubert, 499 U.S. at 325 & n.7.
753.
See also Cestonaro, 211 F.3d at
More specifically, with respect to the second requirement,
the discretionary function exception “protects only governmental
actions and decisions based on considerations of public policy.”
Berkovitz v. United States, 486 U.S. 531, 537 (1988).
generally S.R.P., 676 F.3d 329.
See
The discretionary function
19
exception is a jurisdictional defense that a party can raise in
a Rule 12(b)(1) motion.
See Bedell v. United States, 669 F.
App’x 620, 621 n.1 (3d Cir. 2016).
As alleged in the Complaint, some of the relevant conduct
at issue involves the alleged negligence of leaving cinder
blocks and other construction debris in the Bathroom for days at
a time where inmates had unfettered access to it and where no
corrections officer was generally monitoring.
Defendants, the
party moving for the benefit of the exception, provide almost no
facts regarding the alleged cinder blocks and other construction
debris left in the Bathroom that was the situs for the assault
on Plaintiff.
There are no facts regarding how or why such
debris was there or for how long it remained there.
They explain the policy rationale for why the cinder blocks
were removed--to discover contraband--but do not explain the
policy rationale for leaving it there for days as alleged.
Nor
do Defendants address how the leaving of cinder blocks or other
construction debris for such a time period is the sort of
discretionary function that the “exception was designed to
shield” or how allowing such a condition for a period of days
advances the policy of the prevention or discovery of
contraband.
Finally, it is unclear from the record whether any nondiscretionary standards on the maintenance, clean-up, or repair
20
of potentially hazardous or dangerous conditions from a
facilities or property management perspective exist, which may
impact the application of the exception.
It may be that
Defendant can provide facts that support the application of the
discretionary function exception.
such a determination at this time.
The Court is unable to make
As such, Defendant’s Motion
to Dismiss as it relates to the discretionary function exception
is denied without prejudice.
IV.
CONCLUSION
The Court will grant in part the Motion to Dismiss.
An
appropriate order follows.
Dated: June 27, 2019
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
21
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?